How to appeal an order made in Small Claims Court

Factsheet 14

Waiver and Copyright Agreement

The information contained in the publication you selected is believed to be correct as of the date of the publication’s last revision. However, the law is constantly changing. Legal advice should be obtained to ensure that the information contained in the publication you are using is accurate. By continuing on you agree not to hold the Author, The Law Centre, The Legal Services Society, The University of Victoria, The Law Foundation or any of their employees or other persons associated with these entities liable for any loss or injury you may sustain as a result of reading or relying upon the information contained in this publication or any website linked to this publication. 

In addition you agree not to sell or charge a fee for providing copies of this publication to any person. 

FORMS RELATED TO THIS SUBJECT

 

INTRODUCTION

This Factsheet will give you a step by step procedure to follow to appeal an Order (decision) to allow or dismiss a claim made by a Judge after a Small Claims Court trial.

WHAT IS AN APPEAL

Appeals are heard by a Supreme Court Judge. Appeals always take the form of a review of what happened at the Small Claims trial. The review is based on a transcript. A transcript is a document prepared by a Court Reporter. The document contains everything that was said in Court.

After reviewing the transcript of the Small Claims Court trial, a Supreme Court Judge could decide to hold a new trial. That happened in one case because the transcript did not make it clear what evidence the Small Claims Court accepted in making a decision. In that case the Supreme Court Judge concluded that the only fair way to deal with the matter was by having a new trial, but that will be very rare. Usually after a review of the transcript, and hearing from the people involved in the lawsuit, the Supreme Court Judge will make a decision. In making a decision, the Judge can:

  1. Make any Order the Small Claims Court Judge could have made. In other words, the Judge can allow or dismiss the claim. The Judge could also impose reasonable terms and conditions on the Order and make any additional Orders that the Judge thinks would be just in the case.
  2. Award costs to any party to the appeal.

WHAT CAN BE APPEALED

To appeal, it is not enough for a person who lost at trial to be unhappy with the result. In order to appeal, a person must show that the Small Claims Court Judge, in making the decision, made a mistake about the facts or made a mistake about the law.

MISTAKES ABOUT THE FACTS

In making a decision, the Small Claims Court Judge may have made a mistake about the facts of the case. That is, the evidence given by witnesses at the trial may have been misunderstood by the Judge. Here is an exaggerated example. Suppose a Judge tried a case dealing with who was at fault in a motor vehicle accident. Suppose all the witnesses said at trial that the Defendant’s car entered the intersection without stopping at a stop sign. As a result, the Claimant’s car was hit. Suppose the Judge in her reasons says that the Defendant was not at fault because he was driving in a reasonable fashion. The Judge’s mistake about the facts would be a basis for an appeal.

MISTAKES ABOUT THE LAW

In making a decision, the Small Claims Court Judge may have made a mistake about the law which should be applied to the case. Again, here is an exaggerated example. Suppose a Small Claims Court Judge is hearing a case dealing with the failure to repay a debt. Suppose too that the Defendant gives evidence, which is not contradicted, that in the six years before the lawsuit began, the Defendant did not make a payment on the debt, or acknowledge the debt in writing. Then suppose the Judge ignores the Defendant’s argument that the Claimant started the lawsuit too late and gives judgment in favour of the Claimant. In this case the Small Claims Court Judge would have made a mistake about the law by failing to apply the Limitation Act. That statute should have prevented the Claimant from succeeding in the lawsuit. The Judge’s mistake about the law would be a basis for an appeal.

HOW BIG MUST THE MISTAKE BE

Not every error made by a Small Claims Court Judge will be the basis for a successful appeal. The test which the Supreme Court Judge must apply is called the “clearly wrong test”.

If the Small Claims Court Judge’s decision about the facts or the law is not clearly wrong, the appeal will fail.

Trying to determine whether you have grounds for an appeal which might be successful may be difficult. Try to obtain some legal advice. If you are eligible, you may be able to obtain legal advice from a local legal aid office. Click here for the address and telephone number of the Legal Services Society office nearest you. If legal aid can’t help you, they may still be able to refer you to a free legal advice clinic.

You can also obtain legal advice from a lawyer in private practice or through the Lawyer Referral Service. The Service enables members of the public to consult with a lawyer for up to 30 minutes for a fee of $25. In the Lower Mainland, call 604-687-3221; if you live outside Vancouver, call toll-free 1-800-663-1919. Ask to be referred to a lawyer who has experience with the type of legal problem that was involved in your lawsuit. You may also wish to read “How to Find a Lawyer and Prepare for Your First Interview with a Lawyer.”

APPEALING CAN BE VERY COSTLY

A number of things make appealing a Small Claims Order very costly. First, the person who appeals must pay for having the transcript prepared. Transcripts cost several dollars per page. So, depending on how long the trial lasted, the transcript could be many, many pages and cost hundreds and even thousands of dollars.

Second, unlike after a Small Claims trial, a Supreme Court Judge after an appeal can award costs. The person who wins the appeal, if represented by a lawyer, can be awarded costs to cover part of the lawyer’s fees. The person who loses must pay those costs. Again those costs could easily be in the thousands of dollars.

Third, the cost of filing an appeal, and posting security for costs will be a minimum of $400 (unless a Judge orders that such fees will not have to be paid; See Step 4).

WHAT LAW APPLIES TO APPEALS

The law which governs appeals includes:

  1. The Small Claims Act, sections 5 to 15;
  2. Rule 18-3 of the Supreme Court Civil Rules;
  3. The Practice Direction of the Chief Justice regarding Standard Directions for Appeals from Provincial Court Pursuant to the Small Claims Act; and
  4. Decisions of the Supreme Court in cases which have dealt with appeals

APPELLANTS AND RESPONDENTS

At this point, you should learn the meaning of two words. The person who is appealing the Small Claims Court Order is called the Appellant. The person who won the case in Small Claims Court and against whom the appeal is being made is called the Respondent.

YOU MUST ACT QUICKLY

You have 40 days, beginning on the day after the Order being appealed was made, to do all the things required by Sections 7 to 11 of the Small Claims Act. This includes filing the Notice of Appeal.

A Supreme Court Judge could extend the time, but you should not count on being given more time.

THERE ARE MANY STEPS TO TAKE TO APPEAL A SMALL CLAIMS COURT ORDER

What follows is a checklist of the steps you must take to appeal a Small Claims Court Order. After the checklist you will find details about how to do each step. You will also find information about how to fill out the forms you will need.

  1. Obtain a copy of the written Order made by the Small Claims Court Judge which is being appealed.
  2. Obtain and fill in a Notice of Appeal form.
  3. File the Notice of Appeal at the Supreme Court Registry closest to the place where the Small Claims Court Order was made.
  4. At the time of filing the Notice of Appeal, you must:
    • pay a $200 filing fee (unless you obtain an Order from the Supreme Court reducing the fee);
    • pay $200 as security for costs (unless you obtain an Order from the Supreme Court reducing that amount). The $200 may be paid to the Respondent if you lose the Appeal.
    • If you were required to pay money by the Small Claims Court Order that you are appealing, you must either:
      • deposit the amount required to be paid under the Order at the Supreme Court Registry; or
      • bring an application to a Supreme Court Judge to reduce that amount. For example, if a Small Claims Court Judge found you liable to pay $8,000 to the person who sued you and you wish to appeal, you would have to pay $8,000 to the Court Registry. If you were unable to pay $8,000, you could apply to a Supreme Court Judge to reduce the amount being deposited.
  1. On the same day that the Notice of Appeal is filed in the Supreme Court Registry, a copy of the Notice of Appeal must be filed at the Small Claims Registry where the Order being appealed was made.
  2. Within 7 days of filing the Notice of Appeal, serve the Notice of Appeal on each person who was a party to the lawsuit in Small Claims Court who will be affected by the Appeal. If you need more time to serve the Notice of Appeal, you must bring an application to a Supreme Court Judge.
  3. Apply to the Registrar for a date for hearing the Appeal. That date cannot be less than 21 days after applying for the date. Before the Registrar will set a hearing date, the Appellant must prove the money to be deposited in Step 4 has been deposited (or an Order has been obtained which reduces the amount required to be deposited).
  4. Serve the Notice of Hearing of Appeal on the Respondent. Act quickly. There is a deadline which must be met (unless a Judge grants an Order extending the time). See Step 10.
  5. The Appellant must order transcripts of the oral evidence given at trial and the Small Claims Court Judge’s reasons for judgment. The Appellant must pay for a copy of the transcript for the Court and one for each party to the appeal. Act quickly. There is a deadline which must be met (unless a Judge grants an Order extending the time). See Step 10.
  6. Within 14 days of filing the Notice of Appeal, the Appellant must prove to Registrar that the transcript has been ordered and that the Notice of Appeal and Notice of Hearing of Appeal have been served on the Respondent.
  7. Prepare a Statement of Argument.
  8. Within 45 days of filing the Notice of Appeal, the Appellant must:
    • File at the Supreme Court Registry the original copy of the transcript and Statement of Argument; and
    • Serve a copy of the transcript and Statement of Argument on the Respondent.
  1. At this point, the Respondent will have to prepare a Statement of Argument. The Respondent must file the Statement of Argument at the Supreme Court Registry and deliver a copy to the Appellant not less than 14 days before the hearing of the appeal.
  2. Prepare for the hearing.
  3. Appear in Court.

For more details about each of these steps, please keep reading.

Step 1: Obtain a copy of the written Order made by the Small Claims Court Judge which is being appealed.

If you do not already have a copy of the Order that you want to appeal, you should go to the Court Registry in the Court House where the Order was made. Ask the Clerk for a copy. There may be a small photocopying fee which you will have to pay.

Step 2: Obtain and fill in a Notice of Appeal form.

The Supreme Court Civil Rules say there are two forms you can use. One comes with directions about the steps required for an appeal (Form 74). That is the form referred to in this Factsheet.

To obtain a blank copy of a Notice of Appeal form, click here.
To view a sample of a completed Notice of Appeal form, click here.

You will see that the form is easy to fill out.

BASIC INSTRUCTIONS FOR A NOTICE OF APPEAL FORM:

  1. On the top right of the form there is a place for a number and Registry name. Leave those blank. The Court clerk can fill them in.
  2. After the word “between”, fill in the name of the Appellant, as it appears on the Small Claims Order being appealed.
  3. Before the word “Respondent”, fill in the name of the person who won the Small Claims trial.
  4. After the word “To”, fill in “The Provincial Court of BC: Small Claims Division”.
  5. After the word “And”, fill in the name of the Respondent.
  6. After the words “Whereas on the”, fill in the date when the Small Claims Order was made. Then insert the name of the Judge who made the Order. 
  7. In the area below the words “made the following decision”, write down what the Small Claims Order says the Judge ordered.
  8. After the words “take notice that”, fill in the name and address of the Appellant. 
  9. After the words “…on the following grounds”, insert the reason you are appealing the decision. Examples are listed below.
    • “The Judge did not give proper weight to the evidence;”
    • “The Judge applied the wrong law in making the decision.”
  10. Then, date and sign the Notice of Appeal in the place provided. 

NOTE: You may abandon your appeal at any time after you have filed the Notice of Appeal. If you choose to do this, you will need to complete and file a Notice of Abandonment of Appeal and serve it on the Respondent.

Click here for a blank Notice of Abandonment of Appeal form.

BASIC INSTRUCTIONS FOR NOTICE OF ABANDONMENT OF APPEAL FORM:

  1. Beside “No.”, insert the file number that the Registry recorded on your Notice of Appeal at the time you filed it.
  2. Below that, insert the place you filed your Notice of Appeal. For example, Victoria.
  3. Fill in the names of the Appellant and Respondent as you did in your Notice of Appeal.
  4. If you have not yet received a date for hearing, you will check the box before the words “This appeal has not yet been set for hearing”. Otherwise, check the box before the words “The date scheduled for the hearing…” and fill in day/month/year.
  5. Finally, date and sign the form, checking the box “appellant” below your signature and writing (or typing) your name clearly underneath it.

If you are choosing to abandon your appeal, complete this form and file it at the Registry where you filed your Notice of Appeal. After filing the Notice of Appeal, serve it on the Respondent. See Step 6 for more information on service.

Step 3: File the Notice of Appeal at the Supreme Court Registry closest to the place where the Small Claims Court Order was made.

Step 4: Pay the $200 Filing Fee and $200 Security for Costs. Also, deposit with the Court Registry the amount of money the Small Claims Court Judge ordered to be paid to the Respondent. Alternatively, bring an application to a Judge to reduce the amounts payable.

If you can afford to pay the amounts required, bring a cheque with you to the Court Registry at the time you wish to file the Notice of Appeal. You can then skip down to Step 5.

If you cannot afford the filing fee, you may want to apply to a Supreme Court Judge to reduce the amount to be paid.

To succeed in reducing the filing fee, you must be able to prove that you are indigent (see Supreme Court Civil Rule 20-5). The B.C. Court of Appeal has considered the meaning of that word in a case called Johnston v. Johnston. The Court said “indigent” means “a person who has some means but such scanty means that he is needy and poor.”

The Court refused to approve any particular standard for determining whether a person is “indigent”, and each case will be looked at individually. However, if you receive social assistance or persons with disabilities benefits and you prove this to the court, you will be declared indigent.

If you cannot afford to pay the security for costs (or the amount required to be paid to the Respondent by the Small Claims Court Order) you may want to apply to a Supreme Court Judge to reduce the amounts to be paid.

It is not clear what test the Court will apply to succeed in an application to reduce these amounts. However, it is clear that evidence of an inability to pay the amount required will be vital.

To apply to a Supreme Court Judge, you will have to do the following things:

  1. Prepare a Notice of Application;
  2. Prepare an Affidavit;
  3. Make copies of the Notice of Application and Affidavit and file them in the Supreme Court Registry;
  4. Appear in Supreme Court Chambers to ask for the Order;
  5. Prepare the Order; and
  6. File the Order at the Supreme Court Registry.

For details about each of these steps, please continue reading.

PREPARE A NOTICE OF APPLICATION

A Notice of Application is a document which tells a Judge:

  1. When a person applying for an Order will be appearing in Court;
  2. What type of Order the person wants to obtain; and
  3. What evidence will be used to support the request for an Order.

Click here for a blank Notice of Application.

BASIC INSTRUCTIONS FOR A NOTICE OF APPLICATION FORM:

  1. Where you see the words “[Style of Proceeding]”, write “Between [the name of the Appellant (as it was spelled on the Small Claims Court Order)] and [the name of the Respondent (as it was spelled on the Small Claims Court Order)]”.
  2. After the words “Name of applicant”, fill in the name of the Appellant.
  3. Leave blank the line after the word “To”.
  4. After the sentence that begins with “Take notice” insert the address of the Courthouse Registry that you are attending.
  5. Leave blank the date and time when you will be in Court. The Clerk at the Registry will fill in this information.
  6. Under the words “Orders Sought”, describe the order you are seeking. For example:
    • Reduction of Filing Fee
      • If you want to ask a Judge to reduce the $200 fee for filing the appeal remember you must be able to prove to the Court that you are indigent.
      • If you are seeking to reduce the $200 filing fee, insert “Reduce the fee payable to the Crown to commence this appeal”.
    • Reduction of Security for Costs
      • Section 8(1) of the Small Claims Act requires the Appellant to deposit $200 as security for costs that the court may order if a person loses an appeal.
      • If you are seeking to reduce security for costs, insert “Reduce the security of costs required to be paid by the Appellant pursuant to Section 8(1) of the Small Claims Act.
    • Reduction of Sum of Money to Be Paid
      • A person who is required by a Small Claims Court Order to pay the Respondent money may wish to apply to the Court to reduce the amount that has to be paid to the Court Registry before the appeal can go on.
      • If you are seeking a reduction in the sum of money to be paid, insert “Reduce the sum of money required to be paid by the Appellant pursuant to Section 8(2) of the Small Claims Act”. If you are not required by the Small Claims Order to pay money, then do not insert this sentence.
    • Extension of Time Limit to Serve Notice of Appeal and Notice of Hearing of Appeal
      • Section 11 of the Small Claims Act requires you to serve the Respondent with the Notice of Appeal and Notice of Hearing of Appeal within 7 days of filing them at the Court Registry. Because the process of obtaining an Order to reduce fees and security costs may take some or all of the 7 days, it is necessary to ask for an Order to extend the time to serve the Notice of Appeal and Notice of Hearing of Appeal.
      • If you are seeking an extension of time to file the documents, insert “Extend the time limit for serving the Notice of Appeal and Notice of Hearing of Appeal on the Respondent pursuant to Section 11 of the Small Claims Act.”
  7. Under the section titled “Factual Basis”, give a brief summary of the facts in your affidavit. For example:

“I am seeking an order to reduce the filing fee, security of costs, and the sum of money to be paid as per the Small Claims Court Order, because I am on income assistance and only receive $600 per month; I am seeking an order to extend the time to serve the Notice of Appeal and Hearing because of the time it will take me to get a court date, appear in court, and obtain the order to reduce fees and costs. Please see attached affidavit.”

  1. Under “Legal Basis”, fill in the statutes you rely on. The statues corresponding to the examples in #7 above are as follows:
    • Appendix C, Schedule 1 of the Supreme Court Civil Rules (this is the basis for fees payable to the Crown).
    • Section 8 of the Small Claims Act (this is the basis for the security of costs and the amount you must pay in as per the Order made at the Small Claims Court Trial).
    • Section 11 of the Small Claims Act (this is the basis for the extension of time to serve documents).
  1. Under “Material To Be Relied On”, fill in the affidavit number (1) and your name. Leave blank the date when your Affidavit was sworn until you know what that date is.
  2. The estimated time for an application such as this one is very brief, likely about 5 minutes. Insert before the word “minutes”.
  3. Check the box to the left of the words”This matter is within the jurisdiction of the master”.
  4. Fill in the date of signature for this Notice of Application, sign, and check the box before the word “applicant”.
  5. Leave the next area blank. It is for the Court’s use.
  6. On the Appendix, you will need to check the box applicable to your application. Check the box before the word “service”. Also, at the bottom of the page write or type “Other – Order for reduction of fees, security for costs, and amount to be paid as per the Small Claims Order”. If you are not seeking reduction of the filing fee, do not include it here. If you are not seeking reduction of security for costs, do not include it here. If you are not seeking to reduce the amount you must pay as per the Small Claims Order, do not include it here.
PREPARE AN AFFIDAVIT

An Affidavit is a document which sets out certain facts which you swear under oath to be true.

The Affidavit which you must prepare must contain the following:

  1. A statement that you are going to begin an appeal.
  2. A copy of the Notice of Appeal.
  3. The name and ages of your dependents.
  4. A statement of whether you are employed or unemployed.
  5. A list of your sources of income.
  6. A list of the names of other people who support you or your dependent(s).
  7. A statement of the amount of your income and value of your assets.
  8. A statement of your monthly expenses and debts.

Click here to view a sample of a completed Affidavit with an attached Financial Satement and other exhibits.

Click here for a blank Affidavit form which you can use.

The following information may help you fill in the Affidavit:

  1. On the top of your Affidavit, fill in your name as Appellant and the name of the Respondent. Use the same spelling as you did on the Notice of Application.
  2. Above the first paragraph fill in your name, address and occupation.
  3. Under the words “SWEAR (OR AFFIRM) THAT:” you are able to add numbered paragraphs by typing in the box and clicking “Add” for each paragraph. Follow the steps below to add numbered paragraphs with the necessary information. Note: If you don’t want to use the fillable PDF linked above as the blank Affidavit form, you can click “Prepare a paper copy” at the top of the document and print it blank to fill it in. Make sure you have added enough paragraph boxes first (read through these steps to know how many paragraphs you will need to write). Otherwise, follow the steps below.
  4. In paragraph number 1, indicate that you are commencing an appeal.
  5. In paragraph 2, indicate what type of order(s) you are seeking. There are three examples (reduction of fees, reduction of payment into court, and extension of time to serve documents) included in the sample. Include only the ones that you are seeking.
  6. In paragraph 3, indicate that you are attaching a copy of the Notice of Appeal as Exhibit A. Be sure to attach a copy and label it Exhibit A.
  7.  In paragraph 4, indicate your age.
  8. In paragraph 5, list the names, relationship and ages of your dependents. If you have no dependents, fill in the word “none.”
  9. In paragraph 6, insert the word “employed” or “unemployed” (whichever applies to you).
  10. In paragraph 7, list your sources of income. This would include your salary, E.I., Social Assistance, pensions, etc.
  11. Also in paragraph 7, list persons who contribute to your support or support of your dependents, if applicable. Such persons might include your spouse, common-law spouse, former spouse, parents or your children. Also, list how much each person contributes.
  12. In paragraph 8, indicate, if applicable, that your financial situation will not likely improve in the near future.
  13. In paragraph 9, indicate that you are attaching a copy of your paystub as Exhibit B. Be sure to attach a copy of your paystub and label it Exhibit B.

NOTE: If you receive social assistance or persons with disabilities benefits, you do not need to include a financial statement, education/employment history, or workplace skills. You only need to attach a copy of your paystub as indicated above. Therefore, you can skip items 13-15 below. Do not include these paragraphs in your affidavit. Rather, move on to the last paragraph of the affidavit as set out in item 16 below.

  1. In paragraph 10, indicate that you are attaching a financial statement of your income, expenses, and assets as Exhibit C. Be sure to prepare a financial statement as shown in the sample, label it Exhibit C, and attach it to your affidavit.
  2. In paragraph 11, indicate that you are attaching an accurate description of your educational and employment history as Exhibit D. Be sure to document your educational and employment history as shown in the sample, label it Exhibit D, and attach it to your affidavit.
  3. In paragraph 12, indicate that you are attaching an accurate description of your workplace skills as Exhibit E. Be sure to document your workplace skills as shown in the sample, label it Exhibit E, and attach it to your affidavit.
  4. In paragraph 13, indicate that you have not served the Notice of Appeal or Notice of Hearing of Appeal on the Respondent, because you are first seeking to have associated fees reduced.
SWEAR THE AFFIDAVIT AND EXHIBITS

Take the Affidavit (and exhibits) and some picture identification to a lawyer or notary public to swear the Affidavit. You will then sign the Affidavit and swear that the contents of the Affidavit are true. Unless you go to a Legal Services office and are eligible for legal aid, you should expect to pay a fee for swearing the Affidavit. Make two photocopies of the Notice of Application and Affidavit, and of the exhibits.

FILE THE NOTICE OF APPLICATION AND AFFIDAVIT

Take your completed Notice of Application and sworn Affidavit to the Supreme Court Registry. The Clerk will inform you of the date and time you are to appear in Court to speak to the Judge about obtaining your Order. You may also have to pay a special Court fee (around $80) for applying for an Order to waive the security for costs. Remember, if you are not indigent and are not asking a Judge to waive the filing fees, you will have to pay those fees. That is, you will have to pay a $200 filing fee.

APPEAR IN COURT

You must attend Court on the date which has been set for you to appear. Be sure to arrive at least 15 minutes early.

The person presiding in Court may either be a Supreme Court Judge or a Master. Ask the Clerk whether you will be appearing in front of a Master or a Judge. When speaking to a Master, call him or her “Your Honour.” When speaking to a Judge call him “My Lord” or her “My Lady.”

When your case is called, you should stand up and go to the front of the Courtroom. Remain standing and say:

“Your Honour (or My Lord or My Lady) my name is __________. I want to appeal an Order made by a Small Claims Court Judge. I cannot afford to pay the security for costs” [and if appropriate] “and the money required to be paid under Section 8(2) of the Small Claims Act, and the filing fees.”

“I am making this application to ask you to make an Order to reduce the amount which I must pay into Court.”

“Also, because of the time it will take to prepare an Order, I am asking for an extension of time to serve the Notice of Appeal and Notice of Hearing of Appeal.”

The Master or Judge will read your Affidavit and may ask you some questions including what the Small Claims Trial was about and why you are appealing.

The Master or Judge will then either grant or refuse the Order you are seeking.

PREPARE AN ORDER

If you succeed, you must prepare an Order. An Order is a written document which sets out in a formal way what the Master or Judge stated in Court.

Click here to obtain a blank Order form.
Click here to view a sample of a completed Order.
Click here to view an Order with numbers on it.

The numbers refer to the notes below. Where the number appears, insert the following information on the blank Order form.

  1. Fill in your name as Appellant exactly as spelled on the Notice of Application.
  2. Fill in the Respondent’s name exactly as spelled on the Notice of Application.
  3. Fill in the name of the Master or Judge before whom you appeared. If a Judge granted the Order, check the box beside “Before the Honourable” and fill in “Mr. Justice or Madam Justice _____”. If a Master granted the Order, check the box beside “Before Master” and fill in the Master’s last name.
  4. Fill in the date on which you appeared before the Master or Judge.
  5. Fill in your name after the words “on the application of.”
  6. Leave blank the box before the words “coming on for hearing”.
  7. Check the box before the words “without notice coming on for hearing”.
  8. Fill in the name of the City where you appeared in Court.
  9. Fill in the words “this day”.
  10. Fill in your name. After your name, insert the following words “and on reading the Affidavit of (your name) duly sworn and filed”.
  11. Leave blank the box before the words “without a hearing”.
  12. Fill in the Order made by the Master or Judge. Depending on the Order granted the following words may apply:

“THIS COURT ORDERS that [no fee or fill in how much] be payable to the Crown by [fill in your name] for an appeal to be commenced under the above style of proceeding. [no money or how much money] be paid by [fill in your name] to the Registrar of the Court as security for costs. [fill in your name] must pay to the Registrar of the Court [no money or how much money] to comply with Section 8(2) of the Small Claims Act. The time for serving the Notice of Appeal and Notice of Hearing of Appeal on the Respondent shall not be later than [fill in how many days] after the day this Order was granted.”

  1. Sign your name, check the box before the word “party”, and print your name below the signature.
  2. Fill in the date you are filing the order at the Registry.
  3. Leave the last line on the form blank.
FILE THE ORDER

After preparing the Order, make a photocopy of it. Take the original and copy and file them at the Court Registry. Within a few days, your Order (if it was correctly prepared) should be signed by the Court staff and be ready for you to pick up.

Step 5: File the Notice of Appeal in Small Claims Court on the same day it was filed in Supreme Court

When you file the Notice of Appeal, be sure to attach the Supreme Court Practice Direction, Standard Directions for Appeals from Provincial Court pursuant to the Small Claims Act.

Section 7 of the Small Claims Act says that the Notice of Appeal must be filed in the Small Claims Court Registry on the same day that it is filed in the Supreme Court Registry. However, in a case decided in 1993 called First City Trust v. Bridges Ltd., the court recognized that in certain places in British Columbia the distance between the location of the Supreme Court Registry and the Small Claims Registry was so great as to make it very difficult to comply with Section 7. In that case, the filing took place on the next day. The Court held that the right of appeal would not be lost, even if the filing did not occur on the same day, as long as the Respondent was not prejudiced. Therefore, every reasonable effort should be made to file the Notice of Appeal in the Small Claims Court Registry on the same day or at the latest the day after the Notice of Appeal was filed in Supreme Court Registry.

Step 6: Within 7 days of filing the Notice of Appeal, serve the Notice of Appeal on each person who was a party to the lawsuit in Small Claims Court who will be affected by the Appeal. If you need more time to serve the Notice of Appeal, you must bring an application to a Supreme Court Judge. See Step 4 above.

The Appellant can serve the Notice of Appeal, or can have a process server or a friend give the documents to the Respondent. If you decide on using a process server, look online for “Process Servers.” To save money you should telephone several process servers to get quotes about how much it will cost to have the documents served because prices vary. You should also confirm that the process server will provide you with a sworn Affidavit of Service. An Affidavit of Service is a document that proves to the Court that the documents were served on the Respondent.

The person who is going to serve the document should be given two copies of the document. They should compare the two copies to ensure that they are the same. This is because one copy will be given to the Respondent to be served and the second copy will be attached to an Affidavit of Service. In the Affidavit of Service the person serving the document will be swearing that they gave a copy of the document to the Respondent. Unless they first compare the documents, they will not know that the copy of the documents attached to the Affidavit of Service are the same as those given to the Respondent.

If the person delivering the documents does not already know the Respondent, they should confirm that the documents are being given to the right person. This can be done simply by asking the name of the person being given the documents.

After leaving a copy of each document with the Respondent to be served, the person serving the document must make a note of the time, date, and place (street address, city, and province) where the documents were served. This information will be needed to prepare an Affidavit of Service.

Note: If you need more time to serve the Notice of Appeal, you will have to get an Order to allow you more time. See Step 4 above.

Also note: Step 8 requires that a Notice of Hearing of Appeal must be served on the Respondent. Step 7 tells you how to prepare a Notice of Hearing of Appeal. If possible try to arrange to have the Notice of Appeal and Notice of Hearing of Appeal served at the same time. That will be more convenient and save money if you are using a process server.

IF YOU ARE THE RESPONDENT and have a Notice of Appeal served on you and you wish to oppose the appeal, you must:

  1. Complete a Notice of Interest Form 70.
  2. File the Notice of Interest at the Registry named on the Notice of Appeal.
  3. Serve a copy of the Notice of Interest on the Appellant at the address set out on the Notice of Appeal.
  4. Act quickly, as you must file and serve your Notice of Interest within a certain number of days from when the Notice of Appeal was served on you. The time you are given is based on where you reside.
    1. – If you reside in BC, you must file and serve within 7 days.
    2. – If you reside anywhere else in Canada, you must file and serve within 21 days.
    3. – If you reside in the USA, you must file and serve within 28 days.
    4. – If you reside outside Canada and the USA, you must file and serve within 42 days.

Click here for a blank Notice of Interest form.

Step 7: Apply to the Registrar for a date for hearing the Appeal. That date cannot be less than 21 days after applying for the date. Before the Registrar will set a hearing date, the Appellant must prove the money to be deposited in Step 4 has been deposited (or an Order has been obtained which reduces the amount required to be deposited).

Note: If you fail to file the deposit or any proof or documents required within the timelimits, the Respondent may apply to have your appeal dismissed summarily (without a hearing) or apply for an order to have the Small Claims order under appeal no longer suspended. This would mean you have would have to begin payment as indicated on the Small Claims order or you could risk garnishment (see Factsheet 19) and potentially lose your right to appeal the Small Claims order.

This step requires you to prepare a Notice of Hearing of Appeal. It is a very simple document.

Click here to obtain a blank Notice of Hearing of Appeal form.

To prepare a Notice of Hearing of Appeal, merely fill in the name of the Appellant after the word “Between:” Then fill in the name of the Respondent after the word “And:”. Make a photocopy.

Then go to the Supreme Court Registry. Take with you the money required under Step 4 or a copy of the Order you obtained in Step 4. Also take the Notice of Hearing of Appeal and the photocopy. The Registry staff will insert on the Notice of Hearing of Appeal the date the hearing will take place and give you back a stamped copy. If the registry staff asks you for a time estimate, simply reply “As a layperson, I am unable to estimate the time the appeal will take”.

Then make one photocopy of the completed Notice of Hearing of Appeal for yourself, and two for each Respondent. One copy for the Respondent will be given to the Respondent and a second will be attached to an Affidavit of Service.

Step 8: Serve the Notice of Hearing of Appeal on the Respondent. Also, serve any Order obtained under Step 4. Be sure to act quickly. There is a deadline which must be met (unless a Judge grants an Order extending the time). See Step 10 for instructions on how to serve the documents.

Step 9: The Appellant must order transcripts of the oral evidence given at the Small Claims Court trial and the Judge’s reasons for judgment. The Appellant must pay for a copy of the transcript for the Court and one for each party to the appeal. Act quickly. There is a deadline which must be met (unless a Judge grants an Order extending the time). See Step 10.

Transcripts are prepared by Court Reporters. You will have to make arrangements with the Court Reporters who work in your area of the Province to prepare the transcripts that you will need. To find out who may do the work in your area you may wish to speak to the Court Registry staff. Alternatively, you may wish to telephone Court Reporters listed in the yellow pages online.

Step 10: Within 14 days of filing the Notice of Appeal, the Appellant must prove to the Registrar that the transcript has been ordered and that the Notice of Appeal, Notice of Hearing of Appeal, and the Order reducing the amount of money to be paid under Step 4 (if any) have been served on the Respondent.

To prove that the Notice of Appeal, Notice of Hearing of Appeal and Order (if any) have been served, you will need to file an Affidavit of Service. A process server usually will prepare and have sworn an Affidavit of Service as part of the work they do for you. If you or a friend serve the documents, you will have to prepare your own Affidavit of Service. Refer to Supreme Court Civil Rule 4-3 for the process for personal service of a document.

Click here to obtain a blank Affidavit of Personal Service.
Click here to view an Affidavit of Personal Service with numbers on it.

The numbers refer to the notes below. Where the numbers appear, insert the following information on the blank Affidavit of Personal Service form.

  1. Fill in your name as Appellant exactly as it appears on the Notice of Appeal.
  2. Fill in the Respondent’s name, spelling it exactly as it appears on the Notice of Appeal.
  3. Fill in the name of the person who served the documents.
  4. Fill in the street address, including City, of the person who served the documents.
  5. Fill in the occupation of the person who served the documents. If unemployed, simply insert “unemployed”.
  6. Fill in the date the document(s) were served in dd/mmm/yyyy format.
  7. Fill in the approximate time the Respondent was served.
  8. Fill in who was served (the Respondent’s name).
  9. If you served an Order reducing filing fees and security for costs insert the title of the person and name of the person who granted the Order (for example, “an order of Master Smith, or Mr. Justice Heap, which is attached as Exhibit A”.)

NOTE: If no Order was granted reducing filing fees and security for costs and therefore no Order was served on the Respondent, delete this section or put a line through this space and the word “and” following the space and proceed with the steps that follow.

  1. Check the boxes to indicate copies of each document that was served on the Respondent and identify how each exhibit is marked (for example, “A”, “B”, or “C”). If the Respondent was served with any additional documentation, insert the relevant information on the empty line below and attach those documents as exhibits to the affidavit.
HAVE THE AFFIDAVIT OF SERVICE SWORN

When you have completed filling in the blanks on the Affidavit of Service, take it and a copy of the Notice of Appeal, Notice of Hearing of Appeal, and Order (if any), together with the person who served the documents (if you did not serve them yourself), to a lawyer or a Notary Public for swearing.

FILE THE AFFIDAVIT OF SERVICE

After the Affidavit of Service is sworn, make a photocopy of it (plus the exhibits) and file the originally sworn copy at the Supreme Court Registry.

Step 11: Prepare a Statement of Argument

An Appellant’s Statement of Argument is a document which sets out:

  1. What the Appellant thinks was wrong with the Small Claims Court Order;
  2. Where in the transcript the Small Claims Court Judge made an error in law or in fact; and,
  3. What Order the Appellant would like to see the Supreme Court Judge make.

Click here to obtain a blank copy of an Appellant’s Statement of Argument form.
Click here to view a sample of a completed Statement of Argument.

Before you can prepare your Statement of Argument you must first pick up the transcript from the Court Reporter. Next, you must carefully read your copy of the transcript. You should make a note of the pages in the evidence or the Judge’s reasons for judgment that contain the error in fact or law that you say should result in your appeal being successful. You should also look at copies of any exhibits which were given to the Judge during the Small Claims trial (like contracts, photos, reports, affidavits) to see if the exhibits contain evidence which would help your appeal.

When completing a Statement of Argument, the first step is to decide whether parts of the Small Claims Order are acceptable, or whether you do not agree with the entire Order. Then, on the Statement of Argument, list what you do not agree with.

Then, on the Statement of Argument you should list the evidence and the page and line numbers in the transcript, which will show the Supreme Court Judge where the Small Claims Court Judge made an error. This will become more clear to you if you view the sample and complete your Statement of Argument in the same way. The sample is based on the case described earlier in this Factsheet in which the Judge failed to apply the Limitation Act.

Finally, in the portion of the Statement of Argument dealing with the nature of the Order you are seeking, you should state what you want the Judge to do. For example, if you brought a lawsuit in Small Claims Court and you lost, you may want the Supreme Court Judge to make an Order for what you sued for. So, if you were owed money and you sued for $8000 and you lost, you would ask in your Statement of Argument for an Order that the Respondent pay you $8000. On the other hand, if you were the Defendant in the same lawsuit and you lost at the trial, you might want an Order dismissing the claim.

It would be very useful to get some legal advice when filling in the Statement of Argument.

Click here to find out more information about obtaining legal advice.

Step 12: Within 45 days of filing the Notice of Appeal, the Appellant must:

  1. File at the Supreme Court Registry the original copy of the transcript;
  2. File a Statement of Argument; and
  3. Serve a copy of the transcript and Statement of Argument on the Respondent.

After you have prepared the Statement of Argument make a photocopy for yourself and each Respondent. Take the original and each copy, plus a copy of the transcript to the Supreme Court Registry. The Registry will date stamp the Statement of Argument. You can then serve the Statement of Argument and transcript on the Respondent.

Step 13: At this point the Respondent will have to prepare a Statement of Argument. The Respondent must file the Statement of Argument and deliver a copy to the Appellant not less than 14 days before the hearing of the appeal.

A Respondent’s Statement of Argument is a document which sets out:

  1. What paragraphs the Respondent disagrees with in the Appellant’s argument;
  2. Why the Respondent disagrees with the Appellant’s argument; and,
  3. What Order the Respondent would like to see the Supreme Court Judge make.

Click here for a blank Respondent’s Statement of Argument form.

The Respondent should start to prepare the Respondent’s Statement of Argument by first carefully reading the Appellant’s Statement of Argument. Note where you think errors were made. The Respondent should then read the transcript and review all the exhibits and list the page and line on the transcript that supports the Respondent’s case. Then fill in the form in a manner similar to that in which the Appellant’s Statement of Argument was completed.

It would be very useful to get some legal advice when filling in the Statement of Argument.

Click here to find out more information about obtaining legal advice.

Step 14: Prepare for the hearing

The hearing will not be a new trial. A Judge could order a new trial at the end of the hearing. But the trial would occur at a later date. So the hearing will have a different format than what you experienced at the trial. For example, no witnesses will be called to give evidence. Instead, what usually happens is that the Appellant first tells the Judge what the trial was about. The Appellant then tells the Judge what decision(s) made by the Small Claims Court Judge that the Appellant disagrees with and why. The Appellant may go through the Appellant’s argument set out in the Statement of Argument. The Judge might read the portions of the transcript and the exhibits which the Appellant refers to in the Statement of Argument. The Judge may also ask the Appellant questions. The Appellant might conclude by noting the Order that the Appellant would like the Judge to make.

It would then be the Respondent’s turn. The Respondent might take the Judge through the Respondent’s argument as set out in the Respondent’s Statement of Argument. The Respondent would answer questions the Judge had. The Respondent would conclude by telling the Judge what Order the Respondent would like the Judge to make.

To prepare for this type of hearing you should carefully review your Statement of Argument and any exhibits that you are going to refer to. You might also make notes of what you want to say.

Small Claims appeals do not happen often. However, if you can watch one before your case occurs it will help to give you a good idea of what is likely to happen. To find out if an appeal will happen before your case goes ahead, call the Supreme Court Registry and ask to speak to the Trial Coordinator.

Step 15: Appear in Court

THE DAY OF THE HEARING

Make sure you bring your copy of the Statement of Argument, transcript, and exhibits to Court with you on the day of your hearing. Arrive earlier than the time appointed for the hearing to begin.

Find the trial list, which will usually be posted somewhere in the Court building. This list tells which cases are to be tried on that date and in which particular Courtroom they will take place. If your case is not on the list, then you should immediately check with the Court Clerk or Registry. Otherwise, go to the proper Courtroom and be seated in the gallery.

When your case is called move forward to the Counsel table. Stand while speaking to the Judge. Introduce yourself to the Court. In Supreme Court a Judge is called “My Lord” or “My Lady” or “Your Lordship” or “Your Ladyship.”

The Judge probably will have read both Statements of Argument and will have some familiarity with the case. The Appellant will then present their case first, followed by the Respondent.

Prepared by Cara Hunt
Revised June 2019
Funded by the Law Foundation of British Columbia